Painting from Photographs–or not

I belong to an organization, The Women’s Caucus for Art, which puts on a number of exhibitions during the year, and one called “Flowers Interpreted” is coming up. Since I don’t usually interpret flowers per se, I was happy to find inspiration from a Sierra Club calendar closeup of a field of poppies and coreopsis. Painting from someone else’s photograph is a serious deviation from “best practices”, and not just because of copyright implications. But inspiration cannot be denied.

Speaking of copyright infringements: There is a school of thought that holds that artists may safely (i.e., legally) paint from others’ photographs of nature because the photographer did nothing to set up the photograph–he or she just recorded it. I’m not sure how distinguishable that would be from the AP news photo of Barack Obama that inspired Shepard Fairey’s iconic image (“Hope” poster, buttons, etc), which became the basis of a celebrated lawsuit. The AP argued that Fairey “copied all of the original, creative expression in the photograph.” Fairey argued that his use of the photograph constituted “fair use”–a copyright concept that permits the quotation of written expression. The AP and Fairey settled their dispute, so we will never have a court ruling on that matter but if Fairey did more than take inspiration from the photo, if he actually used the photograph to digitally manipulate it and transform it into his poster image, it seems to me very, very distinguishable from an artist looking at a photograph to inform the way he/she depicts the same subject matter in a painting. One of the AP statements suggests that digital manipulation is exactly how Fairey created his image. (Some artists project a photograph onto their canvases and trace the image instead of trying to draw the image–this to me seems closer to digital manipulation and therefore closer to copyright infringement.) (Reminder and disclaimer: I am a tax lawyer, not an intellectual property lawyer. But I am well trained in logic.)

In an excess of caution, however, I made changes to the contours of the hills presented by the Sierra Club calendar photograph.

Another painting that I worked on last week was painted entirely out of my head, with not a single photograph reference to help me out. As a result, I am a little nervous about its accuracy. Here is that painting:

I woke up a few weeks ago about 2 or 3 a.m., to see a snowy landscape out my window that was lighted up by a pink sky! No, NOT SKY–the snow must have been falling from such low-hanging clouds that the reflection of the city lights were amplified overhead. Each falling snowflake would also be reflecting light from the clouds.

I wanted to record this phenomenon in a painting, but not enough to get up out of bed and paint it in the moment. (Regrets.) So I had to do it from memory, which meant that I had to reason out all those important choices that I usually only have to observe. Shadows or no shadows? Should the pink of the low-hanging clouds be reflected in the snow on the ground? How light, exactly, was it?

I am looking forward to our next overnight snowstorm so that I can check on all such issues. Maybe I will haul out the paint and do it right this time.

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